Judge: Curtis A. Kin, Case: 22STCP04241, Date: 2024-06-18 Tentative Ruling

Case Number: 22STCP04241    Hearing Date: June 18, 2024    Dept: 86

MOTION FOR ATTORNEY FEES

Date:               6/18/24 (1:30 PM)

Case:                           Jimmi Lewis v. VOI Insurance Solutions, LLC et al. (22STCP04241)

TENTATIVE RULING:

Respondent VOI Insurance Solutions, LLC’s Motion for Attorney Fees is GRANTED.

Pursuant to Civil Code § 1717, respondent VOI Insurance Solutions, LLC (“VOI”) moves for an award of attorney fees in the amount of $73,323.50 under section 18.21 of VOI’s Operating Agreement. (See Akerley Decl. ¶ 2 & Ex. B [“Operating Agreement”].)

Petitioner Jimmi Lewis contended in his Petition for Writ of Mandate that he was entitled to inspect VOI’s records as a member of VOI under the Operating Agreement. (Pet. ¶ 8, citing Operating Agreement § 5.3; Pet. ¶ 14) In his petition, petitioner sought attorney fees incurred in enforcing his purported inspection rights under the Operating Agreement. (Pet. ¶ 17, citing Operating Agreement § 18.21.) On March 19, 2024, the Petition for Writ of Mandate was denied. (Wolff Decl. ¶ 3 & Ex. D.)

Civil Code § 1717(a) states: “In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.” (Civ. Code § 1717(a).)

In the Award Agreement through which petitioner obtained an ownership interest in VOI, petitioner agreed to be bound by the Operating Agreement. (Akerley Decl. ¶ 2 & Ex. B to Ex. A at Recital A, § 1.a.) Section 18.21 of the Operating Agreement states, “In the event of any litigation or arbitration regarding the rights and obligations under this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees and court costs in addition to any other relief which may be granted.” VOI prevailed in arguing that petitioner had no right to inspect VOI’s records because petitioner was not a member under the Operating Agreement. (Wolff Decl. ¶ 3 & Ex. D at 10-14 of 20.) Accordingly, VOI is entitled to recover attorney fees from petitioner under Civil Code § 1717(a).

Petitioner contends that the motion for fees is premature because the merits of VOI’s Cross Petition and petitioner’s Cross-Cross Petition remain to be resolved and are pending in Department 24 of this Court. (See Wolff Supp. Decl. ¶ 2 & Ex. G [independent calendar court issued Order to Show Cause why cross-petitions should not be dismissed].) “[C]ourts have awarded attorney fees to a party obtaining an appealable order or judgment in a discrete legal proceeding even though the underlying litigation on the merits was not final.” (Otay River Constructors v. San Diego Expressway (2008) 158 Cal.App.4th 796, 807; see also Turner v. Schultz (2009) 175 Cal.App.4th 974, 983-84 [finding that party could recover fees under Civil Code § 1717 in “discrete legal proceeding” concerning whether arbitration should be allowed to proceed, even though arbitration of merits had not yet occurred].) “A judgment in a special proceeding is the final determination of the rights of the parties therein.” (CCP § 1064.) Writs of mandate are part of Part 3 of the Code of Civil Procedure governing special proceedings of a civil nature. (CCP § 1085.) Judgment has been entered with respect to the Petition for Writ of Mandate. (Wolff Decl. ¶ 3 & Ex. E.) Judgment having been entered in a discrete legal proceeding, VOI may move for attorney fees, even though the cross petitions remain to be resolved.

Petitioner’s citations to Moore v. Liu (1999) 69 Cal.App.4th 745, Urbaniak v. Newton (1993) 19 Cal.App.4th 1837, and Presley of Southern California v. Whelan (1983) 146 Cal.App.3d 959 are unavailing, as those cases involved reversals of summary judgment on appeal where the merits of the underlying litigation had not been resolved. (Moore, 69 Cal.App.4th at 754-55; Urbaniak, 19 Cal.App.4th at 1844; Presley, at 146 Cal.App.3d 959 [196 Cal.Rptr. 1, 2].) Here, the merits of the writ petition, a discrete legal proceeding, have been reduced to judgment.

As for the amount of VOI’s fee request, petitioner does not address or challenge the amount requested. Accordingly, arguments that the fee request is excessive are waived. (Premier Medical Management. Systems, Inc. v. California Insurance Guarantee Association (2008) 163 Cal.App.4th 550, 564.) In any event, the Court having reviewed counsel for VOI’s billing records, VOI’s fee request is reasonable on its face. (Wolff Decl. ¶ 4 & Ex. F.)

The motion is GRANTED. Using the appropriate lodestar approach, and based on the foregoing findings and in view of the totality of the circumstances, the total and reasonable amount of attorney fees incurred is $73,323.50. Such fees are awarded to respondent VOI Insurance Solutions, LLC and against petitioner Jimmi Lewis.